Vicars v. Clarke

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF VIRGINIA

ROANOKE DIVISION

JOEL VICARS, ) )

Plaintiff, ) Civil Action No. 7:20cv00152 ) v. ) MEMORANDUM OPINION )

HAROLD CLARKE, , ) By: Hon. Thomas T. Cullen ) United States District Judge

Defendants. )

Joel Vicars, an inmate proceeding pro se, filed this civil action under 42 U.S.C. § 1983, alleging that the defendants violated his rights to equal protection and due process. This matter is before the court on defendants’ motion to dismiss. Having reviewed the pleadings, the court will grant defendants’ motion.

I.

Vicars is a Virgin Islands inmate and is in the custody of the Virginia Department of Corrections (“VDOC”) pursuant to a contract between the two jurisdictions. Vicars is Rastafarian and keeps his hair long pursuant to his religious beliefs. Vicars arrived at Wallens Ridge State Prison (“Wallens Ridge”) on June 17, 2011, and was “immediately placed in segregation” based on the Virginia Department of Corrections’ (“VDOC”) Operating Procedure (“OP”) 864.1, which required such housing for inmates who refused to cut their hair for religious reasons. Approximately one year later, Vicars was transferred from the segregation unit into the Grooming Standards Violator Housing Unit (“VHU”) at Wallens Ridge. The VHU at Wallens Ridge was the only VHU in the state. Vicars claims that while he was housed in the VHU, he requested a transfer to lower security facility, but his request was denied because he was not eligible for a security-level reduction and transfer because of the grooming policy. Vicars remained in the VHU from April 2012 to July 2019, when OP 864.1 was revised and the “VHU was dismantled.” Under the revised OP 864.1, inmates housed in the VHU were given the opportunity to allow a photograph to be taken simulating the inmate’s appearance as clean-shaven and with short hair. Inmates who complied with the simulation photograph requirement would be “classified to the appropriate security level and transferred to a suitable institution.” Vicars complied with this request.

Vicars claims that after the VHU was dissolved, inmates housed in the VHU were transferred “all over the state” to their appropriate security level facilities. Vicars claims that one other Virgin Islands inmate was transferred to Keen Mountain Correctional Center (“Keen Mountain”), but Vicars was kept at Wallens Ridge even though he is “not a [security] level 5 inmate.”1

On June 21, 2019, Vicars had his annual review before the Institutional Classification Authority (“ICA”). After the hearing, the ICA recommended that Vicars be transferred to Keen Mountain because he had complied with the photo requirement under the revised OP 864.1, he would be eligible for a transfer to a lower level institution, and he had shown good institutional behavior towards staff and fellow inmates. The ICA also noted that Vicars had received one disciplinary infraction in the past two years. The ICA’s recommendation was sent

Vicars argues that the defendants violated his right to equal protection because another Virgin Islands inmate from the VHU was transferred to Keen Mountain and Vicars was not.

He also argues that the defendants violated his right to due process because they denied his transfer to Keen Mountain “without a hearing or a legit reason.”2

II.

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; “it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). In considering a Rule 12(b)(6) motion, a court must accept all factual allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Legal conclusions in the guise of factual allegations, however, are not entitled to a presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

Although a complaint “does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do.” Bell Atl. Corp. v. Twombly,

III.

Vicars argues that the defendants violated his right to equal protection because another Virgin Islands inmate who had been housed in the VHU was transferred to Keen Mountain, but Vicars was not. The court concludes that Vicars has not adequately stated a viable equal protection claim and, therefore, will grant defendants’ motion to dismiss this claim.

The Equal Protection Clause provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. Under the Equal Protection Clause, “all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To state an equal protection violation, a plaintiff must demonstrate: (1) “that he has been treated differently from others with whom he is similarly situated”; and (2) that the differing treatment resulted from intentional discrimination. Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).

Two groups of people are “similarly situated” only if they “are similar in all aspects relevant to attaining the legitimate objectives” of the policy or legislation. Van Der Linde Housing, Inc. v. Rivanna Solid Waste Auth., 507 F.3d 290, 293 (4th Cir. 2007). “Generally, in determining whether persons are similarly situated for equal protection purposes, a court must examine all relevant factors.” United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996). The thrust of the inquiry is whether the plaintiff can “identify persons materially identical to him or her who ha[ve] received different treatment.” Kolbe v. Hogan, 813 F.3d 160, 185 (4th Cir. 2016). To pass the similarly-situated threshold, “the ‘evidence must show a high degree of similarity’”— that is, “‘apples should be compared to apples.’” Id. (quoting LaBella Winnetka, Inc. v. Village of Winnetka, 628 F.3d 937, 942 (7th Cir. 2010); Barrington Cove Ltd. P’ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 8 (1st Cir. 2001)). In addition, to succeed on an equal protection claim, a plaintiff also must set forth “specific, non-conclusory factual allegations that establish improper motive.”3 Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir. 2001) (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).

Here, Vicars alleges the defendants violated his right to equal protection when they transferred another Virgin Islands VHU inmate to Keen Mountain but did not transfer him. Vicars claims that he and the other inmate were similarly situated because they were both Virgin Islands inmates “under the same out of state status” and they were both housed in the VHU prior to the amendment of the grooming policy. However, Vicars does not allege that he and the other inmate had the same disciplinary record or even the same security classifications, factors that would be relevant to a decision to transfer an inmate to a lower security facility. Accordingly, Vicars has not adequately alleged that he and the other inmate were similarly situated such that they both should have been transferred to Keen Mountain. In addition, Vicars fails to allege that any difference in treatment was a result of intentional or purposeful discrimination. Vicars has not plausibly alleged that any of the named defendants were motivated by discriminatory animus. See Brown v. Warner, 2014 U.S. Dist. LEXIS 59548, at *24 (E.D. Wash. Apr. 10, 2014) (“Two isolated instances when one inmate is charged with fighting for engaging in defensive tactics while another is not, does not support an equal protection claim,” for “[a] mere showing of inequality does not establish an equal protection violation,” particularly where the “Plaintiff has failed to allege facts showing he was intentionally treated differently from similarly situated inmates.”) Accordingly, the court Once these showings are made, then the court will determine “whether the disparity in treatment can be justified under the requisite level of scrutiny.” Veney v. Wyche, 293 F.3d 726, 731 (4th Cir. 2002) (quoting Morrison, F.3d at 654). Disparate treatment of similarly situated prisoners “passes muster so long as [it] is ‘reasonably related to [any] legitimate penological interests.’” Veney, 293 F.3d at 732 (alteration in original) (quoting Shaw v. Murphy, 532 U.S. 223, 225 (2001)). concludes that Vicars has failed to allege a viable equal protection claim and the court will grant defendants’ motion to dismiss the equal protection claim.4

IV.

Vicars also alleges that the defendants violated his right to due process because he was denied “access to a suitable institution” “without a hearing or legit reason.” For the following reasons the court will grant defendants’ motion to dismiss this claim.

“The Due Process Clause standing alone confers no liberty interest in freedom from state action taken ‘within the sentence imposed.’” Sandin v. Conner, 515 U.S. 472, 480 (1995) (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)). “[C]hanges in a prisoner[’]s location, variations of daily routine, changes in conditions of confinement (including administrative segregation), and the denial of privileges [are] matters which every prisoner can anticipate [and which] are contemplated by his [or her] original sentence to prison . . . .” Gaston v. Taylor, 946 F.2d 340, 343 (4th Cir. 1991).

Demonstrating the existence of a state-created liberty interest requires a “two-part analysis.” Prieto v. Clarke, 780 F.3d 245, 249 & n.3 (4th Cir. 2015) (quoting Tellier v. Fields, 280 F.3d 69, 80 (2d Cir. 2000)). First, a plaintiff must make a threshold showing that the imposed deprivation amounts to an “atypical and significant hardship” or that it “inevitably affect[s] the duration of his sentence.” Sandin, 515 U.S. at 484, 487; see Puranda v. Johnson, No. 3:08CV687, 2009 U.S. Dist. LEXIS 93226, at *11, 2009 WL 3175629, at *4 (E.D. Va. Sept.

30, 2009) (citing cases). If the nature of the restraint the plaintiff challenges meets either prong of this threshold, the plaintiff must next show that Virginia’s statutory or regulatory language “‘grants its inmates . . . a protected liberty interest in remaining free from that restraint.’”

Puranda, 2009 U.S. Dist. LEXIS 93226, at *11, 2009 WL 3175629, at *4 (alteration in original) (quoting Abed v. Armstrong, 209 F.3d 63, 66 (2d Cir. 2000)).

Vicars fails to demonstrate that he enjoys a liberty interest in a specific security classification or transfer to a specific facility. Chapman v. Bacon, No. 3:14CV641, 2017 U.S. Dist. LEXIS 19539, at *34, 2017 WL 559703, at *13 (E.D. Va. Feb. 10, 2017) (“Sandin itself forecloses the notion that all forms of punitive or administrative segregation presumptively constitute an ‘atypical and significant hardship . . . in relation to the ordinary incidents of prison life.’” (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Vicars has not alleged that his confinement in general population at Wallens Ridge constitutes an “atypical and significant hardship” in relation to the ordinary incidents of prison life.”5 Sandin, 515 U.S. at 484-85.

Furthermore, Vicars fails to direct the court to any Virginia statutory or regulatory language that gives rises to a protected liberty interest in his transfer to Keen Mountain being approved. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 462 (1989) (holding that state prison regulations restricting certain categories of visitors at prison facilities did not give inmates a liberty interest in receiving visitors); Olim v. Wakinekona, 461 U.S. 238, 251 (1983) (holding that state prison regulations did not create a protected liberty interest in being transferred to an out-of-state facility). And to the extent Vicars attempts to allege a deviation from VDOC policy, that alone “is not a federal due process issue.” Brown v. Angelone, 938 F. Supp. 3d 340, 344 (W.D. Va., 1996) (citing Riccio v. Cnty. of Fairfax, Va., 907 F.2d 1459, 1469 (4th Cir. 1990)). For these reasons, the court concludes that based on Vicars’ allegations, any due process challenge to the disapproval of his request for a transfer to Keen Mountain fails.6 V.

For the reasons discussed, the court will grant defendants’ motion to dismiss Vicars’ complaint. However, because it is possible that Vicars could allege other facts that would support a viable federal claim, the court will give him 30 days to file a motion to reopen this case with an amended complaint.7

ENTERED this 27th day of January, 2021. ___/s/ Thomas T. Cullen_____________ HON. THOMAS T. CULLEN

UNITED STATES DISTRICT JUDGE